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• • enforcement and would frustrate many of the goals and pUIposes of the FAA and the

Arbitration Agreement in this case. "A primary objective of an agreement to arbitrate is

to achieve' streamlined proceedings and expeditious results .... AT&T Mobility. 131

S.Ct. at 1749 (quoting Hall Street Assoc .. LLC v. MatteI. Inc., 552 U.S. 357-58).

Not only does the prospect of public injunctive relief greatly expand the scope of

any litigation (i.e., to consider the impact on parties and events other than those involved

in the immediate dispute), but such relief opens the door to ongoing enforcement by

parties who are not party to the arbitration in the future, involves higher stakes, and could

create confidentiality issues. The potential impact of an arbitrator's ruling would be

much greater, and thus the informal procedures of arbitration potentially less acceptable,

where public relief is available. These are just the type of concerns raised by the

Supreme Court in AT&T Mobility, 131 s.a. at 1750-52. Like the class-wide arbitration

analyzed in AT&T Mobility, permitting a party to obtain public injunctive relief would

fundamentally impede the informality, speed, efficiency and relatively inexpensive nature

of a bilateral arbitration and enforcement of a bilateral arbitration. Thus, a claim for

public injunctive relief in arbitration may not be required by Alaska law any more than

class-wide arbitration could be required by California law in AT&T Mobility. Kilgore,;

673 F.3d at 957 ("Just as the FAA guarantees that contracting parties 'may agree to limit

the issues subj ect to arbitration, to arbitrate according to specific rules, and to limit with

whom a party will arbitrate,' . .. so too does it allow them to agree to limit in what

capacity they arbitrate . . .'') (quoting AT&T Mobility, 131 S.Ct. at 1748-51).

CONSOLIDATED REPLY AND oPPOSmON - 22 Stewl111V. Midland Funding et aL, Case No. ~-1l-12054 Cl

001080

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• • G. Plaintiff's Cross-Motion For Partial Summary Judgment Must Be Denied.

Plaintiff's Cross-Motion for Partial Summary Judgment must be denied as a

matter offact and law. Importantly, "[w]hen considering a motion to compel arbitration

[under the FAA], a court applies a standard similar to the summary judgment standard of

Fed. R Civ. P. 56." Hadlock v. Norwegian Cruise Line, Ltd., No. SACV 10-0187 AG

(ANx), 2010 WL 1641275, at *1 (C.D. Cal. Apr. 19,2010) (citation omitted). Here,

Alaska R Civ. P. S6 tracks Fed. R. Civ. P. 56 regarding when summary judgment is

warranted. CompareAk. R Civ. P, 56(c) (summary judgment warranted based on a

showing "that there is no genuine issue as to any material fact and that any party is

entitled to ajudgment as a matter oflaw") with Fed. R Civ. P. 56(a) ("The court shall

grant summary judgment if the movant shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter oflaw.").

Here, Plaintiff has not, because she cannot, meet her burden under Rule 56.

Critically, Plaintiff has submitted no evidence whatsoever opposing the Motion and, as

discussed above and demonstrated in the supporting documents submitted with the

Motion, the validity of the Arbitration Agreement is clear and unrebutted. Plaintiff's

complete lack of evidence opposing the making of the Arbitration Agreement is critical

because "it is not sufficient for the party opposing arbitration to utter general denials of

the facts on which the right to arbitration depends." Grabowski v. Robinson. No.

IOcvI658-WQH-MDD, 2011 WL 4353998, at *6 (S.D. Cal. Sept 19,2011) (citation

omitted). Rather, to create a genuine issue offact, "the party opposing [arbitration] may

CONSOLIDATED REPLY AND oPPosmON - 23 St~art v. Midland FlIIIIiing et llI.. Case No. ~-11-12054 CI

001081

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• • not rest on a denial but must submit evidentiary facts showing that there is a dispute of

fact to be 1ried." Oppenheimer & Co .. Inc. v. Neidhardt, 56 F.3d 352, 358 (2d Cir. 1995)

(citations omitted); Bhatia v. Johnston, 818 F.2d 418, 421-22 (5th Cir. 1987) (stating that

self-serving affidavits do not amount to the type of evidence required to call the "making

of the arbitration" agreement into question). Further, and critically, the ''mere denial of

receipt of [an arbitration change-in-tenns notice] is insufficient to create a genuine issue

of material fact to defeat summary judgment." Daniel v. ChAse Bank USA. N.A., 650 F.

Supp. 2d 1275, 1290, 1289 (N.D. Ga. 2009) (enforcing arbitration change-in-terms notice

where defendant submitted undisputed evidence that notices were mailed, plaintiff

continued to use the account and plaintiff "presented no evidence to contradict

defendant's proof' but merely denied receiving the notice). 8

Here, Plaintiff does not claim she did not receive the Arbitration Agreement. Her

silence in the face of Mililand's evidence effectively kills any argument that there is

genuine issue·offact regarding the making of the Arbitration Agreement that could entitle

her to summary judgment. As a matter oflaw and fact, Plaintiff cannot overcome the

showing made by Midland by remaining silent. See, e.g., Tuers v. Chase Manhattan

8 See also Tmder v. Pin!rerton Security, 305 F.3d 728, 735-36 (7th Cir. 2002) (holding summary judgment not overcome where plaintiff's only mdence was affidavit denying receipt of change­in-terms notice); Walters v. ChAse Manhattan Bank, No. CV-07-0037-FVS, 2008 WL 3200739, at *3 (E.D. Wash. Aug. 6, 2008) (holding that "self-serving declaration" denying receipt of arbitration change-in-tcnns notice was insufficient to defeat summary judgment); Sanders v. Comcast Cable Holdings. LLC. No. 3:07-tw-918-J33HrS, 2008 WL lS0479, at·6 (M.D. Fla. Jan. 14,2008) (holding that plaintiffs' affidavits denying receipt of arbitration notices failed to create genuine issue of fact where notices were mailed in same envelope as account bills, which were paid); Marsh v. Fjrst USA Bank N.A., 103 F. Supp. 2d 909, 919 (N.D. Tex. 2000) (holding that it is "incumbent upon Plaintiffs to negate the presumption of receipt" and affidavits "in which they simply deny receipt ... are insufficient"). CONSOLIDATED REPLY AND OPPOSmON - 24 St~Y.MidlQndFtmdbrgetal .• c..eNo.~-11-120S4CI 00 1082

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• • Bank USA. No. 07-6120-TC, 2008 WL 5045946, at *2-3 (D.Or. Nov. 24, 2008)

(declaration confinning that Chase's records showed that change-in-terms notice was

mailed and Chase did not receive either returned mail or an opt out was evidence of

proper mailing); Battels v. Sears Nat Bank, 365 F. Supp. 2d 1205, 1213-14 (MD. Ala.

2005) (preswning agreements received based on defendant's declaration ''indicatfing]

that the cardmember agreements and change-of-term notices were mailed ... to the same

address to which Plaintiffs' billing statements were sent, and Plaintiffs' have made

payments in response to the billing statements, thereby indicating that the mail reached

the intended recipients").

Plaintiff is not entitled to partial summary judgment for the reasons discussed

above and in the Motion - the Arbitration Agreement is valid and enforceable under

South Dakota, as well as under the United States Supreme Court's controlling and

dispositive decision in AT&T Mobility. Accordingly, the Motion should be granted and

Plaintiff's Cross-Motion for Partial Summary Judgment denied.

1 DATED thi1; <z-' day of June, 2012.

DAVIS WRIGHT ~::.1VJJ'Ul'IJJ LLP Attorneys for M) Cl Funding, LLC

tfSrteeth P. Hodes, ABA # 0511108

CONSOLIDATED REPLY AND oPPOSmON - 25 Stewartv. MIdland FlI1UIing et al.. CaseNo.l~-1I-120S4 Cl

001083

• • ~ li_o_~ SI.'"T:: CF .~L:"l.S:~ \

11: i~:l :"':.;.:;I":"\;cr IN TIIE SUPERIOR COURT FOR TIlE STATE OF ALASKA

~~'2J'" '2 r'" ". 14 L~I .JL 1 .I~·_

THIRD JUDICIAL DISTRICT AT ANCHORAGE C:"'ERK TR:: ~ .. -;:.;:\T£;

CYNTIlIA STEWART, on behalf of herself and all others similarly situated,

Plaintiffs,

v.

MIDLAND FUNDNG, LLC, ALASKA LAW OFFICES, INC. and CLAYTON WALKER,

) ) ) ) ) ) ) ) ) ) ) ) )

Case No. 3AN-II-12054 CI Defendants.

--------------------- )

REPLY RE: PLAINTIFF'S CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT

Midland FWlding, LLC (''Midland'') and Alaska Law Offices, Inc. and Clayton

Walker (together "ALO") (collectively "Defendants") engage in extensive rehashing of

earlier arguments in opposing plaintiff Cynthia Stewart's ("Stewart") motion for partial

summary judgment. In attempting to defeat Stewart's motion for partial summary

judgment, though, Defendants not only fail to address Stewart's motion for partial

summary judgment but also lay bare the weaknesses of their own arguments to compel

arbitration. In addition, Defendants rely heavily upon the decision in Hudson v.

REPLY RE: PLAINTIFF'S CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT Stewarlv. Midland Funding, LLC, ., aL, Cas. No. 3AN-l 1-12054 CI Page 1 of 12

405 00 1020

(

• • Citibank, 3AN-1l-9196CI' and urge this Court not to relitigate these issues. The

Court's decision in Hudson is not binding on this Court, and indeed the situation for

Stewart is distinguishable from the case as presented in Hudson.

I. STEWART'S RIGHT TO SEEK PUBLIC INJUNCTIVE RELIEF CANNOT BE WAIVED

It is a bit ironic that Defendants ask this Court to rely upon the decision in

Hudson, given the arguments advanced in their brief mg. Midland argues extensively

that Stewart is required to assert her claims individually in arbitration 'and cannot seek

public injunctive reliee Indeed, Midland contends that "any public injunctive order

issued by an arbitrator would create significant problems with respect to enforcement

and would frustrate many of the goals and purposes of the FAA and the Arbitration

Agreement in this case. ,,3

However, the Court's decision in Hudson compelled arbitration .only because

Hudson could pursue a public injunction through arbitration! Midland is thus

effectively arguing against the very decision it asks this Court to adopt. Midland,

Order [on Motion to Compel Arbitration and to Stay Action] ("Hudson Order"), issued April 30, 2012, in Case No. 3AN-1l-9196CI.

2 Consolidated Reply [of Midland] in Support of Motion to Compel Arbitration

and to Stay Action; and Opposition to Plaintiff's Cross-Motion for Partial Summary Judgment ["Midland Opposition"], filed June 21, 2012. at 21-22.

3 ld. 4

Hudson Order, at 44 ("If Hudson prevailed in court, she would be able to obtain injunctive relief enjoining Citi's unlawful actions and an injunction of this nature would have a broad impact for consumers.").

REPLY RE: PLAINTIFf'S CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT Siewart v. MidlandFunding, LLC, ., aL, Case No. 3AN-II-12054 CI Page 2 of 12

406 001021

• • though, does have a point in the sense that there would be substantial enforcement

problems if public injunctive relief were granted through arbitration.s

As the California

Supreme Court has explained, arbitration, as an institution, is not equipped to issue and

enforce public injunctive relief. 6

Arbitrators, unlike judges, lack continuing jurisdiction

to ensure enforcement of their decisions.' Thus, even if an arbitrator granted public

injunctive reliet: "another consumer plaintiff also seeking to enjoin the practice would

have to relitigate it. In other words, only the parties to the injunction would be able to

enforce it, although the injunction is public in scope."'

Because the arbitration agreement at issue effectively extinguishes Stewart's

nonwaivable right to obtain public injunctive relief under the Alaska Unfair Trade

Practices Act (the "UTP A',), it is unenforceable under Alaska law, as argued in previous

briefing9

and accepted by the Court in Hudson.lo

This fatal defect in the arbitration

agreement cannot be fixed by imagining that a private arbitrator has the same

s Midland Opposition, at 22.

6

7

Broughton v. Cigna Healthplans, 21 Cal. 4th 1066, 1081 (Cal. 1999).

Id. , Id. See also Davis v. O'Melveny & Myers, 485 F.3d 1066, 1080 (9th Cir. 2007)

("'public ~unctions' are incompatible with arbitration"); Cruz v. PacifiCare Health Systems, Inc., 30 Cal. 4th 303, 319 (Cal. 2003).

9 Plaintiff's Opposition to Motion to Compel Arbitration and Memorandum in

Support of Cross-Motion for Summary Judgment ["Stewart Memo."], filed May 30, 2012, at 7-8 et seq.

10 Hudson Order, at 44.

REPLY RE: PLAINTIFF'S CROSS·MOTION FOR PARTIAL SUMMARY JUDGMENT SUwartv. MidhmdF"nding. LLC, eI aL, C....,No.3AN-II·I20~ C) Page 3 ofl2

407 00102 2

• • continuing jurisdiction and power as a sitting judge. The only way to preSeIVe

Stewart's right to sue for public injunctive relief is to hold that this fundamental policy

is effectively extinguished if Stewart is forced into arbitration and as a result to hold that

Stewart cannot be compelled to arbitrate her claims.

It should be noted that this interpretation of the necessity of preserving public

injunctive relief under the UTPA does not contravene the decision in AT&T Mobility

LLC v. Concepcion. I I Defendants interpret Concepcion as overruling any state law that . .

thwarts any aspect of an arbitration agreement.12

This clearly over-reaches. Concepcion

holds that state laws that prohibit arbitration of a particular type of claim are "displaced"

by the F M.13 Nothing in Alaska's UTP A addresses, let alone prohibits, arbitration; the

California rule struck down by Concepcion specifically did. 14 Defendants effectively

want to carve out arbitration agreements from the protections of the UTPA. Not only

does Concepcion not support this interpretation, but Defendants' interpretation is

contradicted by the FAA's savings clause, which expressly preserves state laws, like

11 131 S. Ct. 1740 (2011).

12 Midland Opposition, at 21; Reply [of ALO] to Plaintiff's Opposition to Motion

to Compel Arbitration and Opposition to Cross-Motion for Partial Summary Judgment ["ALO Opposition'1, filed June 21, 2012, at 15-16.

13 131 S. Ct. at 1747.

I" 131 S. Ct. at 1746.

REPLY RE: PLAINTIFF'S CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT Stewartv. Midland Funding. LLC. III al., Case No. 3AN-l1-120S4 CI Pago4 of 12

408 0010 23

• • Alaska's UTP A, that "exist ... for the revocation of any COntract."IS

Indeed the post-Concepcion Supreme Court held in Marmet Health Care Ctr. v.

Brown 16 that state law unconscionability arguments can still be raised in cases that

involve arbitration agreements because the defense of unconscionability is not "specific

to arbitration" and therefore not preempted by the F M.17

n GIBSON ESTABLISHES ALASKA'S FUNDAMENTAL POLICY THAT UNlLATERAL CHANGE CLAUSES IN ADHESION CONTRACTS ARE UNENFORCABLE

In Gibson v. Nye Frontier Ford, Inc,.1& the Alaska Supreme Court noted and

agreed with "the prevalence of the view that arbitration clauses that may be changed

unilaterally are unconscionable . . . . "19 Defendants try to distinguish Gibson from the

present case by contending that this statement is either dicta 20 or that it does not state a

fundamental Alaska policy.21 Defendants, though, misread Gibson.

The Court in Gibson did not "passO on the question of whether the change in

terms provision rendered the arbitration agreement unconscionable as a matter of

IS

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19

9U.S.C. §2.

132 S. Ct. 1201 (Feb. 21, 2012).

132 S. Ct. at 1204.

205 P.3d 1091 (Alaska 2009).

205 P.3d at 1097. 20

Midland Opposition, at 7; ALO Opposition, at 9. The Court in Hudson reached a similar conclusion. Hudson Order, at 22.

21 Midland Opposition, at 7; ALO Opposition, at 9.

REPLY RE: PLAINTIFF'S CROss-MOTION FOR PARTIAL SUMMARY JUDGMENT Stewart •. Midland Funding. UC, et ai., Case No. 3AN-11-I2054 CI Page 5 ofl2

409 001024

• • Alaska law.',22 Quite the contrary. The Gibson plaintiff argued that the at-issue

agreement was unconscionable because it was subject to unilateral change. The Alaska

Supreme Court upheld the agreement because - and only because - the Court held

that ''the agreement is not subject to unilateral change.',lJ The Court reached this

conclusion after observing the axiom that contracts should be interpreted so as to avoid

rendering them unlawful or of no effect.24

The Court then noted that "lU"bitration

clauses that may be changed unilaterally are unconscionable" and consequently

interpreted the salient paragraph allowing unilateral changes to the contract could not

apply to the arbitration clause.2S

If arbitration clauses could be changed unilaterally, the

Court would not have needed to interpret the contract as it did because it could have

applied the unilateral change paragraph to the arbitration clause. In other words, the

only reason the Court offered the interpretation it did was because it recognized and

endorsed the principle that "arbitration clauses that may be changed unilaterally are

. abl 26 unconsclOn e."

It is clear, then, that the Alaska Supreme Court has already in Gibson ruled that

adhesion contracts which permit one party to make unilateral changes to material terms

lJ Midland Opposition, at 7.

Gibson, 205 P.3d at 1093.

Id. at 1097 (citing REsTATEMENT (SECOND) OF CONTRACfS § 203(a) (1981)).

Id 26

Id.

REPLY RE: PLAINTIFF'S CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT Stewart v. Midland Funding. LLC, et al., Case No. 3AN·II·12054 Cl Paae 6 of 12

410 001025

, 1

• • are unconscionable. And, the commentary to Restatement (Second) of Contracts § 187,

states that unconscionability rules such as this are "fundamental policies" because they

are rules "designed to protect a person against the oppressive use of superior bargaining

power."l7 Application of law from another state - such as South Dakota - that would

allow unilateral change clauses is not permitted under Restatement (Second) of

. Conflicts of Laws § 187.28

Stewart cannot be compelled to arbitrate her claims.

m, DEFENDANTS HAVE FAILED TO MEET THEIR BURDEN FOR SUMMARY JUDGMENT

Defendants claim that Stewart has failed to meet her burden of proof for

summary judgment because she has not presented any evidence supporting her motion

for partial summary judgment.29

This misses the point. The standard for summary

judgment is whether there are no genuine issues of material fact to be litigated and the

moving party is entitled to judgment as a matter of law when interpreting all reasonable

inferences of fact in favor of the non-moving party. See Alaska R. Civ. P. 56(c);

Safeway, Inc. 'II. State, 34 P.3d 336, 339 (Alaska 2001). Stewart should prevail on

summary judgment because, even interpreting the facts in favor of the Defendants, this

2' REsTATEMENT (SECOND) OF CONFLICf OF LAWS § 187 cmt. g ("[A) fundamental

policy may be embodied in a statute which makes one or more kinds of contracts illegal or which is designed to protect a person against the oppressive use of superior bargaining power.").

21 Long'll. Holland Am. Line Westours, 26 P.3d 430, 432 (Alaska 2001) (quoting

RESTATEMENT (SECOND) OF CoNFLICT OF LAWS § 187 (1971)). 29

Midland Opposition, at 23.

REPLY RE: PLAINTIFF'S CROSS-MOTlO]ll FOR PARTIAL SUMMARY JUDGMENT S,ewarr v. Midland Funding. LLC, el al., Case ]110. 3AN-11-12054 CI Page70fl2

411 001026

• • Court should hold that Stewart cannot be compelled to pursue her claims through

arbitration.

Moreover, Defendants' evidentiary support for their own motion for summary

judgment is woefully inadequate to grant summary judgment. Defendants have failed to

provide any credit card agreement signed by Stewart. Defendants have failed to provide

any evidence that Stewart was mailed a "bill stuffer" imposing new. arbitration

requirements on her. All Defendants have provided is a generic notice but no indication

of if or when it was ever mailed to Stewart.30

And, Defendants have provided no evidence for why either Midland or ALO

have a substantial connection to South Dakota law such that it would be more

appropriate to apply South Dakota law instead of Alaska law. When Midland purchased

Stewart's account, Stewart was living in Alaska.31

Stewart was then sued in Alaska by

30 See Notice of Filing of Declaration of Regularly Conducted Business Activity

("Kharlamova Decl."), filed April 9, 2012, at MIDOOSI-68. It is not sufficient to assert that a flier has been mailed without some proof that this has actually happened. Kennedy v. Conseco Fin. Corp., 2000 U.S. Dist. LEXIS 17704, *9-10 (N.D. Ill. Nov. 30, 2000) ("What Conseco fails to recognize, however, is the method of establishing that proper mailing took place. The presumption of delivery can be invoked either by presenting evidence of actual mailing such as an affidavit from the employee who mailed the letter, or presenting proof of procedures followed in the regular course of operations which give rise to a strong inference that the letter was properly addressed and mailed. Conseco has failed to present evidence of either sort. 'j (internal punctuation and citations omitted).

31 Affidavit of Kyle Hannan, dated April 3, 2012, at Exhibit C. This, incidentally,

differs from the situation in the Hudson Order, where the contract between Hudson and

REPLY RE: PLAINTIFF'S CROSS-MOnON FOR PARTIAL SUMMARY JUDGMENT St~ v. Midlond Funding. LLC, ., al., Case No. 3AN-11-120S4 CI Page 8 ofl2

412 001027

• • ALO and had a final judgment entered against her by an Alaska judge. It is this order,

and the attorney's fees contained therein, that is the subject of Stewart's present suit. In

essence, Defendants seek to apply South Dakota law so that an arbitrator can interpret

Alaska law on the awarding of attorney's fees in default coUection actions. This makes

no sense. Alaska courts clearly have a stronger connection to and are better situated to

interpret and enforce the issues at hand than does South Dakota.

Defendants have thus failed to present adequate evidence to support their claim

for summary judgment. Indeed., even inteIpIeting all of the facts in favor of Defendants,

Stewart should prevail in her motion for partial summary judgment for the reasons

stated in this and in Stewart's prior brief.

IV. DEFENDANTS WAIVED THEIR RIGHT TO ARBITRATE

Defendants argue that they have not waived their right to arbitrate because the

present lawsuit allegedly involves "a separate and distinct claim" from the lawsuit filed

against Stewart and because Stewart should have brought her claim within the original

debt collection action.32

Both of these arguments lack merit.

Effectively, Defendants seek to play arbitration as a trump card whenever a case

takes a tum with which Defendants disagree, such as when a debtor like Stewart files a

Citibank was entered into while Hudson was living outside of Alaska. Here, Stewart was living in Alaska when Midland purchased and took possession of her account.

32 Midland Opposition, at 17-18; ALO Opposition, at 12-13.

REPLY RE: PLAINTIFF'S CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT Stewart v. Midland Funding, UC, d DL, Case No. 3AN-II·120S4 C( Page 9 of 12

413 001028

• • counterclaim. Contrary to Defendants' assertions,]3 Stewart's counterclaim is related

directly to the actions taken by Defendants in Alaska courts and should be resolved in

Alaska courts - if Defendants had not used the court process to illegally collect

attorney's fees in default collection actions, Stewart would not have her present suit.

Stewart's present lawsuit is thus not separate from the lawsuit filed by Defendants but

derivative from it

It also does not make sense to argue that Stewart should have brought her claims

in the collection action. As Defendants noted, Stewart is not challenging the validity of

the debt against her.34

But a debtor facing default cannot be expected to know that the

debt collector will seek and be awarded illegal attorney's fees on that default and enter

the case preemptively. Indeed, Stewart's claims did not arise until a final judgment was

entered against her, so the suggestion that Stewart could have brought her claim as a

part of the debt collection action simply does not make sense from a procedural

standpoint.

The fact, though, that Stewart could not bring her claim until after fmal judgment

had been entered against her does not make her claim "separate and distincf' from the

debt collection action. Nor does it protect Defendants from waiver. By ignoring the

arbitration clause that they now claim is binding when they sued Stewart in state court

33 fd.

fd.

REPLY RE: PLAINTIFF'S CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT Stewarl v. Midland Funding. LLC • • 1 aI., Cas. No. lAN- I 1-12054 CI Page 10 ofl2

414 0010 29

. . • • regarding her debt, they waived their right to arbitrate any dispute arising from the use

of the Alaska courts to pursue collecting on Stewart's debt.

It must be remembered that Stewart is challenging how attorney's fees are

awarded pursuant to the Alaska Rules of Civil Procedure in default collection actions.

If Stewart is forced into arbitration, then an arbitrator will decide not an underlying

factual dispute between the parties but rather how to apply the Alaska Rules of Civil

Procedure in default collection actions. Indeed, if this is styled as public injunctive

relief, then the arbitrator will be deciding a fundamental rule of awarding attorney's fees

that applies to thousands of debtors other than Stewart. This is a decision best left to

Alaska courts.

V. CONCLUSION

For the reasons stated above and in Stewart's prior briefing supporting her

motion, Stewart's motion for partial summary judgment should be granted.

NORTHERN JUSTICE PROJECT, LLC Attorneys for Plaintiff

J. Davis, Jr., oriune Dudukgian, M~>aP·

Ryan Fortson, AK Bar 0211043

REPLY RE: PLAINTIFF'S CROSS-MOTION FOR PAR.TlAL SUMMARY JUDGMENT SlewQf'1 v. Midland Funding. Uc, e1 al., Case No. 3AN-II-12054 CI Page II ofl2

415 001030

,,' . .. • CERTIFICATE OF SERVICE

I hereby certify that on this dale a true and c:orroct copy of the foregoing was served via U.S. Mail on:

Allison Gonion Richmond & Quinn 360 K Street, Suite 200 Anchorage, AK 9950J

Counsel for Alaska Law Offices, Inc. and Clayton Walker

Elizabeth Hodes Davis Wright Tremaine, LLP 70 I West Eighth Avenue, Suile 800 Ancbo<age, AK 9950 I

Counsel for Midland Funding, LLC

•

REPLY RE: PLAINTIFF'S CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT Srewartv. Midland Fundillg, UC, d ai., Case No. 3AN.II-J2054 CI Page J2 of 12

416 00103 1

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• • IN 1HE SUPERIOR COURT FOR 1HE STATE OF ALASKA

THIRD JUDICIAL DIS1RICT AT ANCHORAGE

CYNTIllA STEWART, on behalf of herself and all others similarly situated,

vs,

Plaintiff",

) ) ) ) ) ) )

MIDLAND FUNDING, LLC, ALASKA LAW OFFICES, INC, and CLAYTON WALKER.,

) ) ) ) )

Defendants, ) )

Case No. 3AN-1l-12054 CI

"

IPR8PBSEm ORDER GRANTING DEFENDANT'S MOTION TO COMPEL ARBITRATION AND STAY ACfION

This matter having come before the Court on Defendant Midland Funding, LLC's

("Midland") Motion to Compel Arbitration and Stay Action, and the Court having

considered the motion, any opposition thereto, and being otherwise advised,

IT IS HEREBY ORDERED:

1. Midland's Motion to Compel Arbitration is GRANTED,

2, This Action is ~YED pending completion of Arbitration~ p tt.. ~ ~ II"~ t..., . ~,..;. ~ v. ~ 1 ~ ~ fw,I~lI-fl ~

DATED 1hi.s a.~ day of ~ ,2012, Cf>4 I~ ,.~l$., ~l~

./-'~ o.~ ~&ankA.P

Superior Court Judge

417 00/015

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26

• Certjfica!e ofSery!c;e

On !be 9th day of April, 2012, a lnJe aod correct copy of1l1e foregoing document was sent by U.S. Mail, postage paid, to the following party:

Sames S. Davis, lr. Northem Sustice Project 310 K SIRo!, Suite 200 Anchorage, AK 99501

Mom: Wilholm RicbmoDd &: QuiDD 360 K Street, Suite 200

AncbEe, ~ 9950~ By:nm. c,-",t1P>

Karina Chambers

•

1"ROPO"FRJ ORDER GRANTING DEFENDANI"S MOTION TO COMPEL ARBITRATION AND STAY ACTION -Page2of2 CynthfQStlWW1v. MidJandFrmdbtg. UC .. al_ CasoNo. 3AN-11-121lS4C1

418 DWT 9181410..1 0095295.000001 00 1017

" ~

" ' -I,

• • IN 'THE SUPERIOR COURT FOR THE STATE OF ALASKA

THIRD JUDICIAL DISTRICT AT ANCHORAGE .

CYNTHIA STEWART, on behalf of her self and all others similarly situated,

Plaintiffs,

v.

MIDLAND FUNDNG, LLC, ALASKA LAW OFFICES, INC. and CLAYTON WALKER,

Defendants.

) ) ) ) ) ) ) ) ) ) ) ) )

~--------~~~----) 'f)JE.fJr/~

Case No. 3AN-11-12054 CI

ORDER GB • NF1PIlG PLAINTIFF'S CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT

Plaintiff having moved for partial summary judgment;

Defendants having opposed;

This Court being fully advised; Dfi,J Ir;j) ,

The motion is CR:t'~ffi!1B fef the leasons stared In plalntiff3 1l61:9HIflaayiag

I'

Pe;;...y,~tt ORDER SUN 11Fla PLAINTIFF'S CROSS-MOTION JOR PARTIAL SUMMARY JUDGMENT Stewart v. Midland Funding, u.c, et al, Case No. 3AN-11-12054 CI Page I of2

419 001018

- . • CERTIFICATE OF SERVICE I hereby certify that 00 this date • true and correct copy of the foregoing was served via U.S. Mall on:

Marc G. Wilhelm Richmond & Quinn 360 K Street, Suite 200 Anchorage, AK 99501

Counsel fur Alaska Law Offices. IDC. and ClaytoD Walker

Jon Dawroo Davis Wright Tremain., LLP 701 WeslEigbthAvenue. Suite 800 Anchorage, AK 99501

Counsel for Midlaod Funding. LLC

w..,vt1~ ORDERG~S CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT

•

Stewart v. Midland FIlnding. Uc. et al., cas. No. 3AN-ll-120S4 CI Page 2 of2

420 001019